House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Summary of the bill

Policy background

72. The proposal to amalgamate the existing merits review tribunals is the most recent of a series of reforms to merits review in the Commonwealth stretching back to the 1970s.

73. The 1995 Administrative Review Council Better Decisions Report recommended a broad range of changes to the merits review framework. In particular, it considered that a single merits review tribunal would combine the best features of existing tribunals. It would lead to better decisions, remove unwarranted duplication and be simpler for the public. The 2012 Skehill Strategic Review of Small and Medium Agencies in the Attorney-General's Portfolio also considered that there was merit in the idea of amalgamating Commonwealth tribunals, and amalgamation was recommended by the 2014 Commission of Audit report Towards Responsible Government.

74. Similar reforms have been successfully implemented in most states and territories.

75. The Bill approaches the amalgamation of the AAT, SSAT, and MRT-RRT by seeking to preserve the distinctive aspects of each of the tribunals that are important and work well in their specific jurisdictions while streamlining and simplifying procedures to better serve the end users of the amalgamated Tribunal and the Tribunal itself.

76. The Bill would enable the amalgamated Tribunal to deal with a greater range of administrative and procedural matters through practice directions where possible rather than prescribing detailed practice and procedures in legislation.

77. The aim of the Bill is to create a piece of legislation that is easy to use and understand, with minimal change to the existing operation of the merits review tribunals in the exercise of their substantive functions.

Major features of the Bill

78. The Bill would produce an amalgamated Tribunal adapting features and procedures from each of the existing Tribunals. The governance structure would be designed to allow for knowledge and skill sharing across the Tribunal while maintaining specialisation in key jurisdictions.

79. Key features of the Bill include:

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an updated objective requiring the Tribunal to provide a mechanism of merits review that is accessible, proportionate to the importance and complexity of the matter, and promotes public trust and confidence in the decision-making of the Tribunal, as well as providing merits reviews that is fair, just, economical, informal and quick

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a governance structure consisting of a President, Division heads and deputy Division heads to manage the merits review work of the Tribunal, and a Registrar to manage public service and financial arrangements, as well as supporting the work of the Tribunal

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a divisional structure covering the major areas of the Tribunal's jurisdiction to enable management of the Tribunal's workload and specialisation where appropriate

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a membership structure and qualifications that enables the Tribunal membership to reflect a range of experience and expertise, and maintains the role of members who are judicial officers in considering particularly novel or complex issues where appropriate

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retention of key features of the procedures of the AAT, MRT, RRT and SSAT that are crucial to managing the workload of their respective jurisdictions

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reservation of the right to a second external merits review of social services and child support decisions where this is currently available, under procedures similar to those currently used by the AAT for second reviews, and

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transitional arrangements designed to ensure that existing members of the AAT, MRT-RRT and SSAT and the existing Registrar of the AAT are not disadvantaged by the amalgamation, and to transfer proceedings on foot in the discontinued Tribunals to the AAT at the date of amalgamation without disadvantage or inconvenience to applicants and other persons involved in such proceedings.

Governance

80. The President would be the head of the Tribunal and have ultimate authority over its statutory functions and administrative affairs (new section 18B, section 24A of the AAT Act and other provisions). The President would be assisted in his or her responsibilities for the administrative affairs of the Tribunal by the Registrar (section 24B of the AAT Act). The Registrar would also be Agency Head for the purposes of the Public Service Act 1999, and accountable authority for the purposes of the Public Governance, Performance and Accountability Act 2013. The Registrar would exercise these management functions in close consultation with the President (new subsection 24A(4)).

81. In addition, the Bill would create the roles of Division head, and deputy Division heads. Assignees to these roles would be drawn from the Deputy Presidents and senior members of the amalgamated Tribunal and would have the function of assisting the President in the performance of the President's functions by directing the business of the Tribunal in their Division (new sections 17K and 17L of the AAT Act).

82. The President would have power under new section 18B of the AAT Act (and other provisions) to make practice directions for the Tribunal in consultation with the head of any Division to which the direction may apply. This would ensure consistency and transparency in the Tribunal's exercise of its powers, while maintaining flexibility for the Tribunal to adapt its procedures over time. Where possible, provisions in the governing legislation of the Tribunal would be simplified to allow procedures to be set by the President under practice directions.

83. New section 10A would provide a range of delegation powers:

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the Minister may delegate his or her powers to the President

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the President may delegate his or her powers to members, and

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the Registrar may delegate his or her powers to staff and officers of the Tribunal.

84. Clear powers of delegation would be necessary to manage the heavy workload of the amalgamated Tribunal, and allow for flexible allocation of powers across the Tribunal.

85. The Bill would also provide for authorised members and authorised officers (section 59A and new section 59B of the AAT Act). These are particular members and officers of the Tribunal who are authorised to exercise certain powers of the Tribunal, particularly powers in relation to pre-hearing procedures.

Divisional structure

86. To facilitate management of the Tribunal's workload, seven Divisions of the Tribunal would be established by new section 17A of the AAT Act:

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Freedom of Information Division

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General Division

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Migration and Refugee Division

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National Disability Insurance Scheme Division

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Security Division

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Social Services and Child Support Division, and

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Taxation and Commercial Division.

87. Further Divisions may be created by Regulations. At commencement, it is expected that this power would be used to maintain the Veterans' Appeals Division.

88. Work would generally be allocated to Divisions by Regulations, or, where Regulations have not been made in relation to a particular type of application, by practice directions issued by the President (new section 17B of the AAT Act). However, the jurisdiction of the Migration and Refugee Division and Security Division would be allocated by legislation.

89. As noted above, the Bill would enable the Minister to assign a Deputy President as Division head to one or more of these Divisions to support the President's management of the business in that Division (new section 17K of the AAT Act). Deputy Division heads may also be assigned where necessary to support a Division head in larger Divisions (new section 17L of the AAT Act). Division heads and deputy Division heads would exercise powers primarily through delegations and authorisations from the President.

90. The President and Deputy Presidents would be able to exercise powers in any Division of the Tribunal. Senior members and other members would only be able to exercise powers in Divisions to which they are assigned by the Minister (new section 17C of the AAT Act). This reflects existing practice in the AAT, and ensures that members have appropriate skills to review decisions in particular jurisdictions.

91. Specific requirements would apply to assignments in some Divisions. The Minister would be required to consult with the relevant portfolio Minister before making assignments to the Migration and Refugee Division, National Disability Insurance Scheme Division, Social Services and Child Support Division and Taxation and Commercial Division (new sections 17D, 17E, 17G and 17H of the AAT Act). In addition, members would be required to have specific knowledge or experience to be assigned to the National Disability Insurance Scheme Division (new section 17E of the AAT Act), and cannot be the former Director-General of Security or an officer or affiliate of the Australian Security Intelligence Organisation to be assigned to the Security Division (new section 17F of the AAT Act).

Members

92. The amalgamated Tribunal would have four main classes of member (the President, Deputy President, senior members, and other members), classified into seven offices for the purposes of setting appropriate levels of remuneration:

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President

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Deputy President

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senior member (level 1)

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senior member (level 2)

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member (level 1)

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member (level 2), and

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member (level 3).

93. Members would be appointed for a maximum of seven years (subsection 8(3) of the AAT Act) and would be eligible for reappointment. Members at any level would be eligible for assignment to any Division, although it is expected that the levels of the members generally allocated to particular Divisions may differ based on the complexity of work in a particular Division. Member remuneration and related conditions would be set by the Remuneration Tribunal (section 9 of the AAT Act).

94. The other terms and conditions of members would generally be determined by the Minister. The President would be responsible for managing a range of issues relating to members, including approval of outside employment (new section 11 of the AAT Act) and grants of leave of absence in accordance with terms and conditions set by the Minister (new section 12).

Procedure

95. The Bill is designed to maintain key procedures that are essential to the workload of each of the existing Tribunals, while harmonising and simplifying procedures wherever possible.

96. Examples of procedures that are maintained for particular jurisdictions include:

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private hearing in relation to first review of social services matters, and all refugee matters, to safeguard the privacy and safety of applicants, and

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preserving the ability of applicants to make oral applications for first review of social services and child support matters, to meet the particular needs of that jurisdiction.

97. Where it currently exists, the right to second review of social services and child support matters has been maintained. The specific procedures of the Social Services and Child Support Division would apply to these proceedings on first review; on second review the standard procedures of the General Division would apply. This maintains the procedural differences that currently apply to first and second review of these proceedings in the SSAT and AAT respectively.

98. A range of minor procedural improvements would also be made by the Bill. These are identified where occurring in the Explanatory Memorandum.

Modernisation and simplification

99. The Bill would take the opportunity to modernise a number of provisions. For example, where provisions in the existing legislation are adequately dealt with by general provisions in the Acts Interpretation Act 1901 they have been removed. Examples include powers to revoke instruments and rules relating to delegations and acting appointments. The drafting of provisions has also been simplified where possible.

Transitional arrangements

100. Transitional arrangements would provide for Deputy Principal Members, senior members and members of the SSAT, MRT and RRT to transfer to the AAT as senior members and members (Item 5 of Schedule 9). The remuneration of these members would be preserved for the term of their appointment, and terms and conditions would be preserved at commencement (Item 5 of Schedule 9). Transitional arrangements would also preserve the positions of the existing AAT members and Registrar. In addition, the transitional arrangements would clarify how the old and new law would apply to proceedings that have not been commenced, or that have not been finalised, at the date of amalgamation.

101. Transitional arrangements applying to proceedings would be complex. Accordingly, a regulation-making power has been provided to enable regulations to be made to support the amalgamation and other associated aspects within two years of commencement, should any unforeseen issues arise.